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RICHARD D. BALLOU v. STATE ETHICS COMMISSION (10/30/81)

decided: October 30, 1981.

RICHARD D. BALLOU,
v.
STATE ETHICS COMMISSION, ET AL., APPELLANTS



No. 81-3-374, Appeal from the Order of the Commonwealth Court dated February 4, 1981, at No. 1013 C.D. 1980.

COUNSEL

Sandra S. Christianson, Harrisburg, for appellants.

Bruce A. Rosenfield, Philadelphia, for amicus curiae.

Victor L. Drexel, Philadelphia, Stephen G. Bresset, Asst. Dist. Atty., William S. Rawls, Gregg H. S. Golden, Gwendolyn T. Mosley, Deputy Dist. Attys., for appellee.

Michael I. Levin, Harrisburg, for amicus curiae.

Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ. O'Brien, C. J., and Wilkinson, J., did not participate in the consideration or decision of this case. Kauffman, J., files a dissenting opinion in which Nix, J., joins.

Author: Roberts

[ 496 Pa. Page 129]

OPINION OF THE COURT

Appellee, attorney Richard D. Ballou, is a private practitioner who has among his clients four second class townships, a borough, a county coroner and an industrial development aut hority. On April 29, 1980, appellee filed a petition in the Commonwealth Court for declaratory and injunctive relief from the application of the financial disclosure requirements of the Ethics Act, 65 P.S. § 401 et seq. (Supp. 1981-82),*fn1 which appellant, the State Ethics Commission, had by regulation declared to apply to borough and township solicitors. Appellant, in turn, filed preliminary objections in the nature of a demurrer. The Commonwealth Court overruled appellant's preliminary objections and, by order of February 4, 1981, granted relief to appellee. The court reasoned that, as a "municipal solicitor," appellee is a "public employee" subject to the financial disclosure requirements of the Ethics Act, but that the financial disclosure provisions of the act as applied are "unconstitutional as an infringement on the Supreme Court's exclusive power to govern the conduct of persons privileged to practice law in Pennsylvania." Ballou v. State Ethics Comm'n, 56 Pa. Commw. 240, 245, 424 A.2d 983, 986 (1981).

It is well settled that when a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds.*fn2 We conclude that, in his capacity as solicitor, appellee is neither a "public

[ 496 Pa. Page 130]

    employee" nor a "public official" within the scope of the Ethics Act and, hence, is not statutorily compelled to comply with the act's financial disclosure requirements. Unlike the Commonwealth Court, we base our determination upon statutory, not constitutional, grounds. Accordingly, we affirm only that portion of the order of the Commonwealth Court which declares that the Ethics Act does not apply to appellee.*fn3

I

The Ethics Act requires the filing of a statement of financial interests for the preceding calendar year by public employees, public officials and candidates for public office. 65 P.S. § 404. The information to be disclosed in the statement is set forth in 65 P.S. § 405. Since appellee is not a candidate for public office, the financial disclosure requirements of the Ethics Act apply to him only if, in his capacity as solicitor, he is either a "public employee" or a "public official" within the scope of the act.

The Ethics Act defines "public employee" as:

"'Public employee.' Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of ...


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